Citibank (South Dakota) N.A. v. Robin McVicar (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (102.00)

I. Background

The plaintiff moves for summary judgment on the theory of account stated claiming that the defendant McVicar owes $16,622.18 on a Citibank credit card account.   McVicar answered the complaint denying information and belief as to certain allegations, but admitting that Citibank sent her monthly full and true accounts of her credit card indebtedness.

II. Scope of Review

Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1983).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.

III. Discussion

In support of its motion Citibank has filed an affidavit by an “authorized agent” Leola Phenix, and attached thereto are copies of monthly account statements sent to McVicar for the period beginning June 12, 2008 and continuing until June 11, 2009 when the account was closed.   These statements show a balance due of $14,213.58 on June 12, 2008, and an ending balance of $16,772.18 on June 11, 2009 when the account was closed.   Citibank does not explain why the amount claimed to be due is $150.00 less, or $16,622.18.   For a period of time, the statements show regular purchases from vendors and establishments in the vicinity of McVicar's residence in Wilton, Connecticut, and also show that McVicar made regular payments to Citibank on her account on a monthly basis.   After several months, however, the balance due exceeds the credit limit, the interest charges escalate, and the credit card stops being utilized.   All the statements are shown to be sent to McVicar's address in Wilton.

McVicar submitted nothing in opposition to the motion.   She appeared at the scheduled argument date in July 2010, and was given an opportunity to present arguments in opposition, but did not.

This case falls squarely within the doctrine of account stated as set forth in General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 56 (1932), and recently upheld and further articulated by the Connecticut Appellate Court in Citibank (South Dakota) N.A. v. Manger, 115 Conn.App. 764 (2008), and Credit One, LLC v. Head, 117 Conn.App. 92 (2009).   The court grants the motion for summary judgment based on those authorities.

III. Conclusion

Judgment may enter for the plaintiff in the amount of $16,622.18, plus costs, and 6% annual interest postjudgment.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

Adams, Taggart D., J.